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Decision No. 15,045

Appeal of J.G. on behalf of his granddaughter I.G., from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.



April 8, 2004 

Joyce B. Berkowitz, Esq., attorney for petitioner 

DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Rush-Henrietta Central School District ("respondent") that his granddaughter, I.G., is not a district resident.  The appeal must be sustained.

Petitioner and his wife reside in respondent"s district and are I.G."s maternal grandparents.  I.G."s mother was 16 years old when I.G. was born, but she thereafter completed high school, college and graduate school.  I.G. has continuously resided with her grandparents since birth and throughout her mother"s education.  In February 2003, I.G."s mother moved to Houston, Texas with I.G."s younger sister, but I.G. remained in New York with her grandparents.

Prior to the commencement of the 2003-2004 school year, respondent requested that petitioner complete and submit forms regarding I.G."s living arrangement.  Petitioner and his wife submitted an affidavit averring that their home was I.G."s permanent residence, that they provided for all of her necessities, and that they assumed full responsibility for all matters relating to her education and medical care.  I.G."s mother, who was living in Texas, submitted an affidavit stating that her parents had custody and control of I.G. indefinitely.

By letter dated August 13, 2003, respondent's designee for residency determinations advised petitioner that I.G. could not attend respondent"s schools because she was not a district resident.  Respondent permitted I.G. to attend its schools until petitioner commenced this appeal and received a decision on his request for interim relief, which was granted on September 19, 2003.

Petitioner asserts that I.G. resides with him and her grandmother in the district, that respondent"s determination notice was defective and that as the child"s custodian he is required to enroll her in school.  Respondent contends that petitioner fails to overcome the presumption that I.G. resides with her mother and asks that I exclude evidentiary material contained in the petition that was not presented to its designee prior to the challenged determination.

Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Burdi, 39 id. 176, Decision No. 14,206).

     A child's residence is presumed to be that of his or her parents (Appeal of Hutchinson, 42 Ed Dept Rep 310, Decision No. 14,865; Appeal of Vazquez, 42 id. 245, Decision No. 14,841; Appeal of L.W., 41 id. 372, Decision No. 14,717).  That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child's support and custody (Appeal of Hutchinson, supra).

Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Hutchinson, supra; Appeal of Maxwell, supra; Appeal of Lapidus, supra).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Maxwell, supra; Appeal of Lapidus, supra; Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).

I see no reason to reject evidence contained in the petition including those documents which were not provided to respondent prior to its determination.  Respondent does not dispute petitioner"s claim that I.G. lives in the district.  Rather, it contends the presumption that a child resides with her parent cannot be rebutted unless a petitioner asserts that some obstacle prevents the child from living with the parent.  I disagree.  Here, it appears that I.G. may have the option of living with her mother and younger sister.  However, the record demonstrates that I.G. established residency apart from her mother. I.G. has lived with petitioner since birth and remained with her grandparents while her mother was attending college and graduate school.  Further, petitioner has demonstrated that he has full authority and responsibility with respect to I.G."s support and custody and that no one else provides for her support or exercises custody and control over her.  I.G. is also covered by petitioner"s medical insurance.  Under these circumstances, I find that I.G."s actual residence is with petitioner.  Accordingly, respondent"s determination will be set aside.

In light of this disposition, I need not address petitioner"s remaining contentions. 


IT IS ORDERED that respondent allow I.G. to attend school in the Rush-Henrietta Central School District without the payment of tuition.